The Awareness Center closed. We operated from April 30, 1999 - April 30, 2014. This site is being provided for educational & historical purposes.
We were the international Jewish Coalition Against Sexual Abuse/Assault (JCASA); and were dedicated to ending sexual violence in Jewish communities globally. We did our best to operate as the make a wish foundation for Jewish survivors of sex crimes. In the past we offered a clearinghouse of information, resources, support and advocacy.

Wednesday, October 18, 2000

In response to articles on allegations of sexual and other physical abuse
against a well-liked youth leader of the Orthodox Union's NCSY program, Rabbi
Baruch Lanner, Lilith sent the following letter to The New York Times.

To the editor:

The story in New York's Jewish Week on Rabbi Baruch Lanner's alleged misconduct
was eerily, creepily familiar to us: charges of sexual, physical and psychological
abuse against a popular rabbi widely acknowledged but never acted upon. The
story about Rabbi Lanner's alleged misdeeds in working with children is important
and courageous. It is also discouraging. How many times will this story
have to be told before those in positions of authority in Jewish institutions
start to take responsibility for stopping religious leaders who violated ethical
and legal boundaries and who hurt their followers?

The denials and cover-ups by religious authorities in the case of Rabbi Baruch
Lanner closely parallel a report Lilith Magazine has published, investigating
accusations of sexual misconduct by the rabbi and popular singer Shlomo Carlebach.
Lilith, the independent Jewish women's magazine, exposed "The Paradoxical
Legacy" of the late Rabbi Carlebach, known around the world for his neo-Chassidic
spirituality, his charm and his music. Like Lanner's, Carlebach's alleged sexual
misconduct was denied, ignored and covered up by his partisans. And like the
Jewish Week's editor, Lilith's staff was beseeched not to publish, for fear
that the allegations brought against Carlebach would undo all the ostensible
good he had done. The power and charisma of men like Lanner and Carlebach make
it that much more difficult--and that much more important--to bring such allegations
to light. The accusers in both cases felt violate twice: once by the sexual
advances they say were made to them by a revered spiritual figure, and again
by the silence that greeted them when they did come forward.

And let us remember that in all the worry about "malicious gossip"
and the hand-wringing about not making trouble for the rabbi, defensive members
of these religious communities are missing the real point: If the allegations
against Rabbi Lanner are proven true, he is not only in violation of ethics.
He is in violation of the law.

HN1 In a normal custody case, a Delaware family court evaluates the factors set forth in Del. Code Ann. tit. 13, § 722. Where a custody case is overshadowed by allegations of sexual abuse, however, before the court can even entertain a review of the best interest factors, it must first resolve whether the allegations are true. If the court finds by a preponderance of the evidence that those allegations are true, then there are statutory considerations that impact a parent's rights. Del. Code Ann. tit. 13, § 710A.

Family Law > Child Custody > Awards HN4 The best interest factors used in Delaware child custody determinations, enumerated in Del. Code Ann. tit. 13, § 722, are as follows: (1) the wishes of the child's parent or parents as to his or her custody and residential arrangements; (2) the wishes of the child as to his or her custodians and residential arrangements; (3) the interaction and interrelationship of the child with his or her parents, grandparents, siblings, persons cohabiting in the relationship of husband and wife with a parent of the child, any other residents of the household, or persons who may significantly affect the child's best interests; (4) the child's adjustment to his or her home, school and community; (5) the mental and physical health of all individuals involved; (6) past and present compliance by both parents with their rights and responsibilities to their child under Del. Code Ann. tit. 13, § 701; and (7) evidence of domestic violence as provided for in Del. Code Ann. tit. 13, ch. 7A.

Pending before the Court is a Petition for Custody filed by Barbara G. Ford ("Mother") against Samuel C. Ford ("Father") regarding the parties' two minor children, Susan * n1 born June 28, 1993, and Harriet * n2 born January 16, 1996. Pursuant to this Court's Order of August 16, 2000, the Court will use pseudonyms to identify the parties. The issues before the Court relate to the custody and visitation of the parties' minor children. The Court held a hearing in this matter that lasted four days; specifically, May 31, 2000; June 1, 2000; June 22, 2000; and June 26, 2000. The Court allowed counsel to submit closing memoranda. Both parties submitted closing memoranda on September 1, 2000 and subsequently submitted replies to those closing arguments on October 2, 2000. In addition to the testimony of the parties, the Court heard testimony from the following witnesses:

Rabbi David Kaplan; Frances Klaff, Ph.D.; Dr. Richard A. Gardner; Samuel Romirowsky, Ph.D.; trial deposition of Dave Swain * n3; trial deposition of Ann Pedrick of the Division of Family Services (DFS); and the trial deposition of Pamela Denney of the State of Delaware Visitation Center. The Court received a volume of exhibits at trial, including video tapes and an audio tape.

The Court reserved its decision regarding the introduction of DFS records pending the post-trial submission of counsel. The Court received the post-trial submissions simultaneously on August 4, 2000. The Court will address this issue first as it pertains to the introduction of evidence.

Mother requests admission into evidence of pages 16-17, 22-25, and 39 of the DFS records. Father does not object initially to the introduction of pages 24, 25 and 39, or the first paragraph of page 22. [*3] However, Father objects to the introduction of pages 16, 17, 23, as well as the balance of page 22. The Court finds that pages 16, 17, 22, and 23, although contested by Father, shall be admissible into evidence pursuant to Delaware Rules of Evidence 801(d)(1)(B), as they are not hearsay. The disputed pages are consistent with trial testimony and, in addition, are being used properly to rebut charges of improper influence and motive n4.

n4 The primary thrust of Father's case against Mother is that Mother had an improper motive in bringing sexual abuse allegations against him. As such, this evidence clearly is being presented to rebut that argument.

Father requests introduction of pages 14, the first paragraph of page 22 n5, 23 except as to line 4 of the first full paragraph, and 24. The Court allows the introduction of page 24, as neither party disputes its admissibility. The Court, however, accepts the version presented by Mother that contains an additional paragraph regarding a telephone call. Additionally, [*4] the Court will accept Father's version of page 23 as the Court agrees with Father that the statement regarding Detective Williams constitutes double hearsay because Detective Williams was not called as a witness. The Court specifically rejects Father's arguments that the requested documentation from Mother should be excluded because it is duplicative and because he did not have an opportunity to cross-examine. Clearly, those documents were sought to be admitted prior to the final day of trial, and both parties had copies of those records. Therefore, counsel for the parties had the opportunity to cross-examine the parties regarding their testimony on the fourth day of trial. The Court declines to find the evidence duplicative as it was offered to show consistency with trial testimony and to rebut a charge of improper motive. The Court shall admit page 14, as Father has requested, pursuant to 801(d)(1)(C), as it shows the identity of the caller n6. Finally, both parties agree to the introduction of page 39 n7. The Court hereby admits Mother's pages 16, 17, 22, 24, 25, and 39 as Mother's Exhibit # 39 and admits Father's page 14 and 23 as Father's Exhibit # 6.

The parties in this case were formerly husband and wife. They separated around June or July 1998, but continued to reside in the same household until January 14, 1999, when Mother and the children left the household. Mother filed a Petition for Custody on January 15, 1999 and a Petition for Protection From Abuse (PFA) on January 19, 1999. She received an Ex Parte Order that date. On January 29, 1999, Father entered into a Consent PFA Order. The Order allowed Mother and the children to move back into the house, thereby removing Father from the home. Mother and the children have resided in the former marital residence since that time.

On March 3, 1999, Father filed an Answer and Counter-Claim to Mother's Petition for Custody and Mother filed an Answer to Father's Counter-Claim on March 16, 1999. Thereafter, the parties executed a Stipulation and Order that modified the PFA Order, [*6] signed by a Commissioner on April 27, 1999. On May 11, 1999, the Commissioner further clarified the PFA Order. Finally, the Court entered a modified Order regarding Father's visitation on January 27, 2000, and the parties have been operating under that Order since that time.

Although initially both parties opposed joint custody, at trial the parties agreed to continue joint custody of the children. Each requested primary residency. Mother testified that if the Court awards her residency of the children, she seeks to continue Father's supervised visitation. Father indicated that if Mother is awarded residency, he wants liberal, unsupervised visitation. However, Father asked that he be awarded primary care and Mother, liberal visitation.

STATEMENT OF FACTS

Mother's allegations of sexual abuse regarding Father and Susan, the parties' oldest child, precipitated the parties' separation in January 1999. On January 8, 1999, DFS received a call from Jewish Family Services and two other calls from Ann Cash * n8, a neighbor of the parties, regarding the allegations. DFS began an investigation on January 14, 1999, by having Ann Pedrick interview Susan. Later that day, Susan was taken [*7] to the Children's Advocacy Center (CAC) and was interviewed on video by Ann Pedrick, as well as Terry Kaiser, a Forensic Interviewer. New Castle County Police questioned Father, who denied the allegations. Father was removed from the former marital residence pursuant to the Ex Parte PFA Order entered on January 19, 1999. On January 29, 1999 a Consent PFA Order was entered extending Father's exclusion from the marital residence. Mother made an audio tape of Susan in mid-January 1999 in which she confirmed the allegations. After the January 29, 1999 PFA Order, Father brought the matter back to Court to outline a specific telephone schedule for his contact with the children. It was not until May 1999 that Father began visitation at the State Visitation Center. The parties utilized the Northeast Visitation Center due to its current availability, notwithstanding the fact that both reside closer to the Hudson Center in Newark. Father's visitation ultimately was extended to 2 two-hour blocks per week pursuant to Court Order in January 2000. The parties have continued to operate under that Order.

In addition to being examined by Dr. Alan DeJong, a physician at A.I. DuPont Hospital who found no physical evidence of abuse, Susan was counseled for over a year by Dr. Frances Klaff. She was further evaluated by Father's expert, Dr. Richard Gardner, and was the subject of a custody evaluation performed by Mother's expert, Dr. Samuel Romirowsky.

FINDINGS

HN1In a normal custody case, the Court would evaluate the factors set forth in 13 Del. C. § 722 n9. However, this is custody case is overshadowed by allegations of sexual abuse and therefore is not a normal custody case. The major issue before the Court is the allegation of sexual molestation committed by Father against Susan. Before the Court can even entertain a review of the best interest factors, it must first resolve whether the allegations are true. If the Court finds by a preponderance of the evidence that those allegations are true, then there are statutory considerations that impact Father's rights. 13 Del. C. § 710A n10. It has been argued that the statute presumes not only that a parent who is found to have sexually abused a child is prohibited from [*9] having custody, but that the offending parent should not have any contact or visitation until such time as the Court deems that supervised visitation is appropriate. The Court notes that, in this case, supervised visitation has been taking place. Mother argues that the statute dictates that Father never will be entitled to anything but supervised visitation.

(a) The Court shall determine the legal custody and residential arrangements for a child in accordance with the best interests of the child. In determining the best interests of the child, the Court shall consider all relevant factors including: (1) The wishes of the child's parent or parents as to his or her custody and residential arrangements; (2) The wishes of the child as to his or her custodian(s) and residential arrangements; (3) The interaction and interrelationship of the child with his or her parents, grandparents, siblings, persons cohabiting in the relationship of husband and wife with a parent of the child, any other residents of the household or persons who may significantly affect the child's best interests; (4) The child's adjustment to his or her home, school and community; (5) The mental and physical health of all individuals involved; (6) Past and present compliance by both parents with their rights and responsibilities to their child under § 701 of this title; and (7) Evidence of domestic violence as provided for in Chapter 7A of this title. [*10]

n10 13 Del. C. § 710A provides:HN3

If the Court finds by a preponderance of the evidence that a parent has sexually abuse a child, the Court shall prohibit all visitation and contact between the abusive parent and the child until such time as the Court finds, after a hearing, that supervised visitation would not harm, endanger, or impair the child's physical, psychological, or emotional well-being. In determining whether such visitation may be appropriate, the Court should consider all relevant factors, including: 1) Whether the abusive parent has successfully completed a treatment program of evaluation and counseling that is specifically designed for sexual abusers and is conducted by a public or private agency or a certified mental health professional; (2) Whether the abusive parent has successfully completed a program of alcohol or drug abuse counseling; (3) Any testimony by a mental health professional who is the therapist for the abused child; (4) Any testimony by a mental health professional who is the therapist for the abusive parent; and (5) Whether supervised visitation is in the child's best interests.

Nothing in this section shall preclude the Court from denying visitation under other appropriate circumstances, including denying such visitation under an ex parte or other emergency order.

If the Court finds that Mother has failed to sustain her burden of proof regarding the occurrence of sexual abuse, the Court must then decide whether Mother has falsely accused Father. Should the Court find that Mother coached the child and brought false allegations, Father argues that Mother is unfit to be the children's primary caretaker. However, the Court could find that Mother did not prove the allegations of abuse by a preponderance of the evidence, yet that she did not falsely bring these allegations, rather she acted in a course of conduct that she felt was in the best interest of her children.

There was testimony from Dr. Gardner, Father's expert, that the statements Susan made that led to the investigation simply could have been innocent comments made by a precocious, highly intelligent five-year old, to which Mother responded in an inflammatory way. Were this the case, the Court would rely on the best interest factors enumerated in 13 Del. C. § 722 in order to determine which parent would be the most appropriate primary caretaker.

It is undisputed that this case is troubling in many aspects. The position of the parties is that either the alleged abuse occurred and Father should [*12] have restricted contact forever, or that abuse did not occur and Mother is bringing these charges as revenge for Father's enforcement of the parties' prenuptial agreement. After four days of trial, submissions of trial depositions, exhaustive review of video tapes and an audio tape, and a thorough review of the closing arguments, the Court must make certain findings. In doing so, the Court must consider the credibility of the witnesses, the positions of the parties, their motivation, the relationship and interaction of people that had significant contact with the parties, and finally the Court's most important job of reconciling the conflicting evidence and testimony.

The Court will not recite all of the testimony from the four-day hearing, as the record clearly speaks for itself and counsel for both parties have obtained transcripts of the trial. The Court, however, will place emphasis on those parts of the testimony that have impacted its decision and on which it relies.

EVIDENTIARY FINDINGS

The Court finds, based upon all the evidence presented and notwithstanding Father's continued denials to the contrary, that Mother has sustained her burden of proof that Father had [*13] inappropriate sexual contact with Susan. The Court stresses that its finding is not an easy one to make, but one that is supported by the evidence. First, the Court finds that Mother did not coach Susan regarding her explanation of Susan's disclosure or the subsequently obtained audio tape in which Susan repeated the allegations. Despite Father's contention that the mood was too light (there was singing both before and after the accusations were recorded), the Court has listened to the audio tape numerous times and finds that there is a break in recording both before and after Susan's disclosure. The Court reconciles the fact that Susan was not upset or crying, with the repeated testimony from all of the experts that Susan did not consider what happened to be bad and was not traumatized by it initially. Therefore, the Court finds that Susan's composure on the audio tape is not relevant to the truth of her statements. The Court specifically finds that Susan's comments on the audio tape are her , and not the words of another. As such, while Mother may have asked Susan to repeat what she had disclosed previously, the Court finds that Susan's statements on the audio tape are inconsistent [*14] with statements that are coached or memorized by a five-year old child.

Having found that the audio tape is legitimate, the Court finds that Mother's actions thereafter are an appropriate response. The Court accepts Mother's version of the subsequent events. Initially, Mother approached Father who denied the accusations and alleged that Susan was lying. She sought advice from her Rabbi who referred her to Jewish Family Services. Jewish Family Services called DFS, with whom Mother cooperated in order to ascertain the truth of the allegations. Mother sought advice from a friend. In addition, the Court finds Mother's version of her confrontation of Father at the library to be credible.

The only unclear issues to the Court are the facts and circumstances surrounding Mother's finding condoms in parts of the house under Father's exclusive control. The Court agrees with Dr. Gardner that Mother failed to ask the critical question of how Susan knew what a condom was. The Court finds both Mother's explanation and Father's explanation insufficient, yet the Court finds Mother's version to be the more credible.

The Court agrees with Father's argument that Mother would have been upset with his [*15] refusal to alter or destroy the prenuptial agreement, but the Court does not find that she would put her children at risk in order to seek revenge against him. The Court finds it unrealistic to accept that version, especially because Susan, in the months following January 1999, continued to believe that there was nothing wrong with what happened. If Mother were bent on seeking revenge against Father, it would follow that she would impress upon Susan that Father is evil or that his actions were bad and wrong. It was only after a course of therapy with Dr. Klaff that Susan came to the conclusion that what happened was inappropriate.

In support of the Court's findings, the Court finds that little weight can be given the interview performed at CAC, despite the fact that Mother became convinced of the truth of the allegations after this interview. It is clear from a review of the video tape that Susan was more comfortable with Ann Pedrick. Her revelations to Ann Pedrick, instead of Terry Kaiser, are understandable. It is obvious from Susan's body language that when Terry Kaiser entered the room, she shut down completely and provided no information. However, whenever Ann Pedrick was present, [*16] Susan was more comfortable and forthcoming with information. Although Ms. Pedrick did not videotape Susan's initial statement, the Court finds that Susan did indeed make the statements to Ms. Pedrick.

All in all, the Court finds that the CAC interview was not helpful in this case. Were it the only evidence, the Court could find a failure to prove the abuse. However, Dr. Klaff indicated that Susan corroborated the details that she provided on the CAC tape in her sessions with her.

The Court accepts that Dr. Klaff's role was to treat Susan and not to determine whether the abuse occurred. While it is true that Susan was referred to Dr. Klaff by SOAR (Survivors of Abuse in Recovery), an agency that deals with children effected by sexual abuse at an early age, Dr. Klaff's main focus was to treat a child diagnosed with adjustment disorder and anxiety. Dr. Klaff testified that she formed her diagnosis within Susan's second or third visit based upon Susan's nightmares, fear of monsters, fear of being alone in bed, and scary thoughts. It was clear to her that Susan was exhibiting symptoms of anxiety. Dr. Klaff further testified that she found nothing that led her to the conclusion that Susan [*17] was coached by Mother. If she had, she would have confronted Mother. Doctor Klaff stressed that her role was not to check the veracity of the allegations or gather evidence, but only to treat her patient. She further testified that it was not customary for children of Susan's age to draw genitalia unless they have experienced sexual contact. It was significant that when the issue of the condoms was raised, Susan drew a picture of genitals with a circle around them. When asked if she wanted to draw another picture, she drew a man with genitals and a circle around it, drew frenetic circles on the head and said "It's Daddy." Doctor Klaff testified that she would not expect a five and a half year old to know about or to be able to draw a picture of such things or to know the purpose of a condom n11. All of these facts caused Dr. Klaff great concern.

Dr. Klaff analyzed all of the pictures that Susan drew for her, and while each picture [*18] can be individually interpreted, clearly when grouped together, the pictures in this case, indicated a certain theme involving Father and the relationship to a bed. Susan was also able to describe how she touched Father's penis "at the tip", a detail of carnal knowledge uncharacteristic for a five-year old. As a result, Susan is more sexualized for a little girl, although not in a manner of traumatization that one might expect in a typical case of sexual abuse. Dr. Klaff indicated that these incidents may become more traumatic for Susan in the long run.

It is not unusual, given the circumstances of this case, that the child would think it was a good touch, done in a loving way, allowing her to be closer to a parent, especially because she was not told it was a bad thing to do. However, upon being told that it was wrong, Susan perceived it differently. It is interesting to note that after seven to eight months of treatment, Susan indicated that she did not remember what happened between her and Father, other than that she should not have told Mother. Susan also indicated that she kept the secret for a long time and that she remembers it was a secret. During this point in her therapy, [*19] while not specifically remembering what happened, Susan made comments to Dr. Klaff regarding a picture she drew when asked to draw what happened. The picture n12 was accompanied by Susan's statements "I'm yelling at Daddy and he's yelling at me. He's saying touch me and I'm saying no..no." On January 18, 2000, Susan indicated to Dr. Klaff that she felt guilty about telling a lie about not doing it. She acknowledged that Father did ask her and she did do it, i.e. "touched his peepee". Dr. Klaff specially stated that she does not believe Mother discussed any issues with Susan in later sessions. Dr. Klaff found it significant that Susan said that she did not remember, but at the same time relayed details of it occurring in the master bedroom while Mother was in the kitchen.

As indicated previously, part of Dr. Klaff's methodology of treating children, especially children of Susan's age, is to have the child draw. Dr. Klaff interprets those drawings, but, not [*20] in a vacuum. Her interpretations of drawings, including the Gingerbread Book, are based on her years of clinical experience and empirical studies. She objectively analyzes certain themes and elements in the material. Dr. Klaff indicated that the story was consistent in the times and places it occurred. Based on this consistency and the pictures themselves, Dr. Klaff found that the abuse occurred n13. She testified that would not be adverse to including Father in Susan's therapy in the future should Susan have difficulty in her relationship with Father.

n13 Although Father argued that Mother had control over Susan during times when Susan drew certain pictures, and that Susan drew no suggestive pictures during the CAC interview, or for Dr. Romirowsky or Dr. Gardner, the Court finds that Susan's drawings for Dr. Klaff are legitimate.

In her rebuttal testimony, Dr. Klaff indicated that she had a working diagnosis that was confirmed by interviews with the child. She indicated that her technique was not faulty.

Dr. [*21] Klaff gave lesser weight to Dr. Gardner's findings because he did not see Susan until a year after she had been in treatment. Dr. Klaff further indicated that throughout the course of her treatment of Susan she found several indicators of sexual symptoms and issues. She criticized Dr. Gardner for making an evaluation without talking with Susan's treating therapist and reviewing all the materials and record. Dr. Klaff pointed out that Dr. Gardner did not see Susan when she started therapy and therefore did not see the symptoms that Susan exhibited. Finally, the Court notes that Dr. Romirowsky corroborated Dr. Klaff's findings, especially those regarding the interpretation on the pictures.

Before turning to Dr. Romirowsky's custody evaluation, the Court will address Dr. Gardner's testimony. While the Court respects Dr. Gardner's years of experience and involvement in cases such as this, it questions the weight it can give his analysis and findings. The Court acknowledges that Dr. Gardner found a likelihood that the alleged abuse did not occur and agrees with his finding that the CAC interview was a suspect interview, however, the Court finds that his projective group analysis was inappropriate [*22] in this case. This method compares the subject child to children known to have been sexually abused, children who were not sexually abused, and to the 67 indicators that bear on the probability of whether abuse has occurred. However, the instant case is atypical of a normal sexual abuse case in that, as previously indicated, Susan did not feel that anything bad or wrong happened. Additionally, by the time Dr. Gardner saw her, it had been over a year since the incident occurred and Susan had been in therapy since that time. As previously noted, Susan responds differently to each individual, depending on her comfort level. In addition, Dr. Gardner only received the audio tape and not the video tape of the CAC interview so he did not have the opportunity to observe Susan's body language during the interview. The Court notes that Susan's reluctance in answering Dr. Gardner's questions is understandable given the fact that Dr. Gardner questioned her over a year after the alleged incident occurred.

With respect to Dr. Gardner's evaluation of Father for pedophilia, Dr. Gardner's own testimony indicated that his method would not indicate if Father is a regressed pedophile. Dr. Gardner testified [*23] that regressed pedophiles could include divorced, lonely individuals who crave attention. He further attested that contested divorce and custody battles could bring out repressed urges that did not previously exist, although noting that not every person will act out. Dr. Gardner acknowledged that there is not one test to determine who is a pedophile, but that his criteria are the best indicator available. In his book, Dr. Gardner indicated that his criteria are designed to identify fixated pedophiles and not regressed ones. He admitted, however, that if Father was spending one or two nights per week in Susan's bed, Father should be evaluated to determine why Father had the need for such extended contact with his daughter, as such contact is not healthy for either of them.

Dr. Gardner was critical of Dr. Klaff for treating Susan for sexual abuse. He testified that a year of treatment is not justified, even if Susan touched or pulled Father's penis, because such contact was not significant. He did indicate, however, that he might have to consider the possibility of sex abuse without trauma in this case. Dr. Gardner further acknowledges that he is in the minority on this point and that [*24] too many professionals are treating children unnecessarily. He feels that the majority of people would take Susan's statements as indicators of abuse, and noted that there has been hysteria over this issue over the last fifteen years. The Court notes Dr. Gardner did not find parent alienation in this case. He testified that generally he only recommends transferring custody to parents in very moderate and severe parent alienation cases. He indicated that there are very few cases involving false accusations that are not accompanied by parent alienation syndrome. This harks back to the Court's earlier finding that if Mother were seeking revenge on Father, she would have taken a more negative approach in influencing Susan. Again, however, an explanation of the condom issue troubles the Court, with Dr. Gardner questioning why Father would leave any evidence behind. Dr. Gardner testified that the condom claim has a preposterous quality characteristic of a false accusation.

Finally, the Court notes that Dr. Gardner acknowledged that there is no known accuracy rate for his sex abuse protocol, as no studies have ever been done. No one has ever tested his 67 criteria, so there is no external [*25] validity. He acknowledged that it cannot be verified and that it may not detect mild forms of abuse. At the same time, Dr. Gardner would not invalidate use of the protocol.

The Court heard testimony from Dr. Romirowsky, the custody evaluator in this case. Dr. Romirowsky did not focus his evaluation on whether the alleged incidents took place, but at the same time he considered whether either parent posed a risk to the children. He found that the tone on the audio tape is believable, in contrast to Dr. Gardner's finding. He noted that the comments were not histrionic or embellished upon when Susan talks about the event. These characteristics make Dr. Romirowsky believe that the events more likely than not occurred. He further found that there was no indication that Mother attempted to impose on Susan that it was bad or that it was her fault or that she was a bad person. As far as he saw, Mother was taking deliberate measures so that Susan would see herself as a normal, healthy child. He feels that Mother acted out of concern and without malice. In his testing of Mother, while he found that there were elevations of anxiety levels, he found that it was not her agenda to undermine the [*26] children's relationship with Father. Dr. Romirowsky does not believe that she fabricated the incident. He further determined that Father's comments regarding Mother and her problems and needs are not compatible with his clinical findings of Mother.

Regarding Father, he found no evidence of psychopathology and while he found nothing registered on the sexual abuse potential inventory, he indicated that it does not necessarily screen for behavior that could cause emotional harm but not physical harm. It therefore does not exclude the behavior that was alleged in this case.

The Court is especially concerned with Dr. Romirowsky's findings regarding Susan's response to the Rorschach test and the Thematic Apperception Test because they showed a different side of Susan. One indication was the death sign covered in blood. There were also responses regarding witches, monsters, and blood. While not 100% scientific, Dr. Romirowsky notes that he concludes that these results indicate a darker side of Susan over what is safe or how good she is. It is clearly evidence of anger and frustration. In the Incomplete Sentences Test, Susan notes that she looks in a mirror and sees an evil twin sister and [*27] then runs away, possibly evidencing Susan's struggle with good versus bad acts.

Dr. Romirowsky finds no indication that Susan has been traumatized from the testing or from Mother, Dr. Gardner or Dr. Klaff. He concluded that she suffers from adjustment disorder requiring on-going treatment, especially in light of the possible effects of this Order, the presence of anxiety, some knowledge or impression of sexualization, and a connection to bed, Father and genitalia. As indicated, he corroborates Dr. Klaff's interpretation of the totality of the pictures that Susan drew. While Dr. Romirowsky shares Dr. Gardner's concerns regarding the DFS interview, he does not disregard it or discount its validity because it is not being viewed in a vacuum but it is considered with all of the information taken in the context of that interview.

As he was hired to do, Dr. Romirowsky has made a custody recommendation to the Court. He testified that in spite of the significant tension and anger between the parents, once all litigation is resolved, both Mother and Father are dedicated to their children and will do what is necessary to resolve the major issues involving their children. He indicated that [*28] both parties have the requisite skills to communicate and work with one another. He recommends joint custody so that neither parent will feel disenfranchised, noting that both have indicated to him that they would work with each other. As for contact, he noted that it is important for Susan and Harriet to maintain a normal relationship with Father. This would include spontaneity of contact as well as shared activities. Dr. Romirowsky recommends that visitation occur in Father's home, away from the artificial constraints of the Visitation Center, however, the visits should continue to be supervised. He recommends that Father employ someone to be present during visits in his home or elsewhere, until such time that all experts have confidence that the girls are old enough to report any difficulties. He finds that primary placement with Mother is appropriate and that contact with Father be expanded dramatically to conform with Standard Visitation, excluding any overnights. He specifically recommended alternating weekends, Friday evenings from 5:00 to 8:00 p.m., Saturdays from 10:00 a.m. to 6:00 p.m., and Sundays from 10:00 a.m. to 6:00 p.m. In addition, he recommends weekly visits on Wednesday [*29] from 5:00 to 8:00 p.m. He further feels that Father's visitation should continue to be supervised until such time as a mental health professional recommended by the Court approve unsupervised visitation. He recommends alternating holidays, alternating spring and winter breaks, as well as summer visitation.

Dr. Romirowsky further finds that it is not in the best interest of the children for Father to have primary placement. He bases his recommendation to a reasonable degree of psychological certainly on the fact that they have relied primarily on Mother heretofore and that not having her as primary caretaker could be detrimental to them. He indicates that no one has provided any evidence that the girls are not thriving while in Mother's care, noting that even under the difficult circumstances, the children still have maintained their relationship with Father. It is reasonable to conclude that because Dr. Romirowsky does not recommend overnight visitation with Father, primary placement is not a possibility. He finds that Father's claims of fabrication by Mother regarding these allegations is baseless. Therefore, Father's claim that Mother is unfit to parent is without merit. Finally, [*30] Dr. Romirowsky believes that Mother acted responsibly in this case.

It is noted that on cross-examination he acknowledged that the results of Father's test on Child Abuse Potential Inventory were negative but that there was no real test for pedophilia, only indicators. He notes that Father is resistant to treatment, however at the same time, he concludes that Father is not in need of treatment. On redirect, he noted that the presence of psychopathology is not necessary as evidence that an individual has engaged in incest either as evidenced by the personality assessment inventory or the child abuse potential inventory. He noted that there is literature distinguishing general pedophilia from circumstances in a family that might lead to incest. He set forth four precursors as conditions for incest in regards to likelihood it has occurred:

1) Where the marriage has failed, and either parent might be in a position where they are not getting much love and attention;

2) Where the parent would temporarily or permanently overcome his or her own internal inhibitions to the incestuous act;

3) Where the parent has access to the child absent the other parent, apart from the [*31] supervised situation where the other parent would be present;

4) Where the parent overcomes the child's resistance to any inappropriate behavior. The Court notes that these conditions are consistent with Dr. Gardner's definition of a regressed pedophile. According to Dr. Romirowsky, Father satisfies factors 1, 3 and 4, while there is no evidence regarding factor 2 n14. With respect to the first factor, Dr. Romirowsky acknowledged that separation and a deteriorating marriage could lead to an individual's need for affection and unconditional love and that it certainly sets the stage for a child to take the place of a spouse. With regard to the third factor, he notes that according to Susan, the events took place when Mother was either in the kitchen cooking dinner or asleep on the couch. With respect to the fourth factor, he noted that when the child is affectionate, enjoys pleasing a parent, and does not view what she is doing as wrong, there would be less resistance. Although Father argues that the first and third factor could apply to any separation and divorce case, the Court notes that in the majority of divorce cases, there are not accusations and allegations like those [*32] in this case.

Turning now to other witnesses, the Court notes that the testimony of Ms. Denny was consistent with both parties testimony that visitations between Father and the children have been going well at the Visitation Center. This testimony supports Dr. Romirowsky's recommendation that visitation with Father be expanded beyond the confines of the Visitation Center. As to the trial deposition testimony of Mother's neighbor, the Court finds this corroborates Mother's version of events notwithstanding his lack of memory regarding the specific statement of a sexual nature that Susan made in his presence. He did recall a statement of a sexual nature being made, and therefore his testimony regarding the timing of the event is appropriate.

With respect to the trial deposition testimony of Ann Pedrick and Terry Kaiser, the Court found Ms. Pedrick's testimony credible as to Susan's initial revelation [*33] to her regarding what transpired. It is clear from the videotape that Susan is much more comfortable confiding in Ann Pedrick and resisted opening up to Terry Kaiser.

As to Mother's testimony, as the Court has previously indicated, the Court finds her version of events to be the most believable for the reasons previously set forth. As such, with the Court finding Mother's testimony more credible than Father's, and with the positions of Mother and Father being at total opposites, the Court finds Father's denial of inappropriate contact unbelievable. At the same time, the Court acknowledges that what may have started out as innocent contact between a Father and daughter reading stories in bed together, nevertheless culminated in inappropriate sexual contact between them. The most impressive result of what occurred is that Susan was not traumatized by the incident, however, at the same time, has become cognizant that what occurred was inappropriate. It is only hoped by the Court that with the therapy she has undergone and may need in the future, the incident can be resolved and the parties can go on to live a normal life and maintain healthy relationships.

Having concluded that Mother [*34] has sustained her burden of proof by a preponderance of the evidence that inappropriate sexual contact has occurred, the Court will review HN4the best interest factors enumerated in 13 Del. C. § 722.

(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements. This factor favors Mother because of her history as the primary caretaker when the parties were together, notwithstanding Father's assistance on the weekends when he was not working. Additionally, the Court finds that she took the appropriate course of conduct when the sexual abuse allegations came to light. Father, on the other hand, has accused Mother of coaching Susan to falsely accuse him of sexual abuse for the sole purpose of gaining revenge on him for not altering the prenuptial agreement between the parties. The Court finds that Father has taken an all or nothing approach in this case which does not reflect that he has kept the best interests of his children in mind. Obviously, with the finding of inappropriate sexual contact, this factor clearly favors Mother.

(2) The wishes of the child as to his or her custodian(s) and residential

[*35] arrangements.

The Court did not interview the children for several reasons including the young age of the children, especially Harriet, and because of the frequency of interviews that Susan has been subjected to. The Court finds that it has sufficient information from those sources to glean her wishes and desires. Clearly, the wishes of Susan are to see Father more than she is currently seeing him as it was obvious from the evidence that she misses her extended contact with him which has been limited due to the supervised visitation at the Visitation Center. The Court notes that Dr. Romirowsky's recommendation was for Mother to have primary residency, noting this recommendation came after interviews and testing with Susan.

(3) The interaction and interrelationship of the child with his or her parents, grandparents, siblings, persons cohabiting in the relationship of husband and wife with a parent of the child, any other residents of the household or persons who may significantly affect the child's best interests;

The evidence has supported the fact that both parents have an excellent relationship with each of their children. The visits have been going extremely well [*36] at the Northeast Visitation Center and Dr. Romirowsky has observed both parents acting appropriately with the children and being attuned to their needs. Obviously, with the Court's finding of inappropriate sexual contact between Father and Susan, that relationship has suffered and it is only hoped that it can be rekindled to what one may consider a normal relationship. The Court accepts Mother's feelings that Father remained in bed with Susan beyond what is normal and appropriate. While it is one thing to read stories in bed with a child, it is another to remain the evening there. Again, unfortunately, what was a happy and pleasurable moment for Susan resulted in more than what any child, especially a child as young as Susan, should experience.

Father's testimony regarding the different parenting styles employed by Mother and himself, with Mother being more prone to physical and verbal discipline of the children, reflected well on Father. The Court finds Father's style more appropriate in that he reasons with the children, talks with them, and uses time-outs instead of other forms of discipline.

With respect to extended family, it is undisputed that as a result of the parties separation [*37] and restrictions pursuant to the original PFA Order and pursuant to the parties' divorce, the children have enjoyed more significant contact with Mother's extended family. It should be noted that the Court heard no evidence that Father's parents filed a Petition for Visitation or accompanied Father to visits at the Visitation Center. While Father testified that should the Court award him residency, his parents would move to Delaware and become an integral source of support for him and the children, the evidence suggest that they have not been there for the children over the past year and a half. As a result of the situation, Mother has been a full-time parent for almost two years now. As a result, this factor favors Mother.

(4) The child's adjustment to his or her home, school and community; By all accounts, the children are well-adjusted to their home and community, and as far as Susan is concerned, to school. Harriet is not in school at this point in time. Although the Court acknowledges that the former marital residence is to be sold, both parties have testified that should they be awarded primary residency, they would remain in the area in order to provide stability [*38] for school purposes for Susan. While there was some dispute regarding who was responsible for pool membership, the purchase of a swing set, and Synagogue attendance, the Court finds these factors should not be given as much weight as the parties have implied. The bottom line is that the children are thriving under Mother's care and that there is no evidence, aside from Father's allegations that Mother falsified the allegations, that she is unfit with regard to her ability to take care of the children on a day-to-day basis. As Dr. Romirowsky further indicated, she has been able to provide for their medical care, respond to their needs, including academically, and has made sure that they continue to be clean, fed, and nurtured. He noted this was especially true notwithstanding the difficult circumstances. He adds that the girls have a good relationship with both Father and Mother. This factor favors Mother.

(5) The mental and physical health of all individuals involved; The Court has previously detailed the significant findings of Drs. Klaff, Romirowsky and Gardner and will not reiterate them here, other than to say that it is obvious from the evidence that Susan suffers [*39] from adjustment disorder with anxiety. While Father argued that this could have been just as easily caused by the separation, divorce and lack of contact he personally had with the children, the Court finds that it is more likely a result of the sexual abuse at the hands of Father n15. The Court is not minimizing the impacts of divorce and separation, however, had the sexual abuse not occurred, the evidence in this case indicates that the parties would have continued to maintain significant contact notwithstanding who was the primary residential parent. It is also important to note that in Dr. Romirowsky's testing, both parties tested normally, showing no signs of psychopathology. Although Dr. Romirowsky found that Mother has higher levels of anxiety, he also indicated that it would not be abnormal for that to be present in the case at hand. For the reasons set forth herein, as well as in the previous discussion regarding the experts testimony on the issue of sexual abuse, the Court finds that this factor favors Mother.

(6) Past and present compliance by both parents with their rights and responsibilities to their child under 13 Del. C. § 701 of this title;

The Court finds that Father did have to come to Court after the initial PFA Order was entered in order to ensure a more scheduled telephone contact between he and the children, and that Mother did not take steps to encourage that contact prior to the Order being entered. However, at the same time, the Court notes that Mother burdened herself by having visitation occur at the Northeast Visitation Center so as not to wait an additional three to four months to commence visitation at the Hudson Visitation Center. Further, because the Court finds that the sexual abuse allegations are true, the Court does not accept Father's possible argument that Mother violated her obligation as a parent by bringing false accusations. The Court finds overall that this factor does not favor either party.

(6) Evidence of domestic violence as provided for in Chapter 7A of this title.

Mother testified as to several incidents of physical abuse at the hands of Father during the parties' marriage, the most significant being the time that Father grabbed Mother [*41] and forcibly removed her from Susan's doorway because Mother attempted to prevent Father from sleeping with Susan that night. At the same time, however, Mother did not characterize the events as violent but as physical intimidation. The Court notes that no charges were ever filed against Father and Father was never brought to Court and the psychological testing indicated that neither party scored on the abuse testing. Obviously, with the finding that sexual abuse did occur, domestic violence is evident in this case as described in Chapter 7A of Title 13. This factor favors Mother.

With the Court finding a review of the best interest factors supports the conclusion that Mother should be the primary residential parent, the Court shall enter an Order accordingly. Therefore, joint custody of both minor children are awarded to Mother and Father, with primary residence to be in Mother's household. Further, the Court accepts Dr. Romirowsky's recommendation regarding an expansion of Father's visitation rights. The Court specifically finds that Father should be entitled to visitation every other weekend, on Friday evenings 5:00 to 8:00 p.m., Saturdays 10:00 to 6:00 p.m., Sunday's 10:00 to [*42] 6:00 p.m., along with every Wednesday from 5:00 to 8:00 p.m. Mother shall have the right to approve of the individual or individuals who will provide supervision. Absent an agreement of the parties, the Court would approve of Paternal Grandparents or a nanny hired by Father for that purpose. Obviously, the parties are free to agree to any other third party to provide supervision, including but not limited to family, friends, and coworkers. Further, the parties shall alternate holidays pursuant to the Standard Visitation Guidelines, but which shall be limited to exclude overnights. Additionally, Father would be entitled to alternating winter and spring breaks from school, again daytime only from 10:00 a.m. to 6:00 p.m. on the days he is able to take them. Father also would be entitled to take up to five weeks in the summer on the days he is available, so long as supervision occurs. The Court also finds that supervised visitation of Harriet is appropriate, especially in light of the sex abuse finding involving Susan. Clearly the opportunity for abuse is present with Harriet if visitation is unsupervised, and the Court is uncomfortable allowing that opportunity to exist.

While the Court [*43] acknowledges the restrictions for visitation set forth in 13 Del. C. § 710A, the facts of this case are such that supervised visitation is occurring presently and, as a result of the hearing and findings herein, will continue in the foreseeable future. Applying the five factors enumerated in 13 Del. C. § 710A to the facts of this case, the Court finds that as to the first factor, although Father has not completed a treatment program, Dr. Romirowsky and Dr. Gardner both testified that Father is not in need of one. With respect to the second factor, the Court finds that alcohol and drug abuse was not an issue in this case. With respect to the third factor, the Court accepts Dr. Klaff's finding that supervised visitation is appropriate and that despite what transpired, Father and Susan have a good relationship. The fourth factor is not applicable in this case because Father does not have a treating therapist. Finally, with respect to the fifth factor, and for the reasons discussed, the Court finds that supervised visitation with Father is in the best interests of Susan and Harriet.

The Court finds that a liberal interpretation [*44] of the statute may not preclude a finding regarding future visitation being unsupervised. However, that issue is not before the Court and may need to be addressed at some point in the future. It is not presently ripe for consideration. Therefore, for the reasons set forth herein, Father's visitation with Susan and Harriet shall be supervised.

ATTORNEY'S FEES

Mother has requested in her closing arguments that she be afforded the opportunity to request an award of attorney's fees due to the protracted litigation that has occurred in this case and due to Father's financial superiority. The Court, therefore, directs that within 15 days of this Order, Mother shall file a Motion and Affidavit for Attorney's Fees and Costs to which Father shall have 10 days to respond. The Court will reserve a decision on the issue of attorney's fees until the submission of those filings. Should Mother fail to file her Motion and Affidavit within 15 days of the date of the Court Order, she will be foreclosed from pursuing that action.

Sunday, October 01, 2000

Research and writing by Mary L. BolandRevisional Research and Writing by Gina S. McClard and Lyn M. Schollett

ICASA Advocacy Manual - October, 2000

I. INTRODUCTION TO THE LAW OF PRIVILEGE

A. OverviewThe American judicial system is an adversarial system premised on seeking the truth. Discovering the truth about an event or occurrence requires disclosing facts relevant to that event or occurrence. Sometimes the facts to be disclosed stem from a conversation between two people. Usually, the contents of a conversation between two people that a court deems relevant must be disclosed during criminal prosecutions or civil trials. However, there are a few exceptions to this general rule.

In a few specific circumstances, the relationship between two people is so sacred that communications between them are considered “privileged” and therefore protected and excluded from being repeated in the trial process.1 Husband/wife, attorney/client, doctor/patient, clergy/ parishioner and journalist/source are examples of the type of relationships in which privacy is essential and a privilege is recognized by the law.2 There is no recognized privilege in Illinois between same sex partners or between parents and children.

Certain medical privileges have existed since the early 19th century when the physician-patient privilege first was recognized. However, privileges for mental health care have only been recognized since the 1950's. This protection is extended because of the highly personal and private nature of communications between a therapist and a client. A successful relationship between a therapist and client is built on the trust and confidentiality essential for open and honest communication.

Sexual assault counselors have enjoyed “privileged” communications with clients only for the last two decades. A sexual assault victim may have feelings of guilt and self-blame that can be overcome through therapy with a counselor, and society has started to recognize the public policy advantages of protecting that relationship. If communications between a victim and her counselor are not protected by confidentiality, the victim may be afraid to fully communicate with her counselor, depriving her of the full benefits of counseling.

B. A National View By 1981, fourteen states enacted statutes protecting the confidentiality of a rape victim’s communications with her therapist.3 By the end of 1991, seven more states, including Illinois, passed similar protective laws.4 The protections, known as privileges, afforded by state statutes range from absolute privilege to qualified privilege,5 which means that counselors in some states never have to reveal information while counselors in other states may have to reveal information in certain situations.

Today, 24 states have laws specifically protecting communications between a sexual assault victim and an advocate or counselor.6 Another six states have broader statutes protecting communications between any crime victim and an advocate or counselor.7 An additional ten states have statutes protecting communications with domestic violence counselors or professional counselors.8 One more state protects communications with health care providers via case law.

These privileges vary dramatically in the degree of protection that they provide to the protected communications. Some statutes permit judicial review in the determination of whether communications will be released; others do not. Some limit the information that will be released; others do not. As described below, the law in Illinois provides one of the strongest protections available nationwide for communications between a sexual assault victim and her advocate or counselor.

C. The History of Privilege Law in Illinois

1. Qualified Privilege Under Mental Health Laws - Prior to 1982, communications between a sexual assault victim and a rape crisis counselor in Illinois were governed by the Mental Health and Developmental Disabilities Confidentiality Act. 740 ILCS 110/1 et.seq. This law protected the privacy of records kept by a mental health professional for any client receiving counseling. If any party to a lawsuit wanted access to a sexual assault victim’s counseling records, that party would subpoena the records from the counselor. The counselor was required to give the requested records to a judge. The judge then would hold an in camera hearing (privately, in chambers) to determine whether the records were relevant to the case. If the judge found the information relevant to the case, the judge would order the counselor to give the records to the requesting party. The sexual assault victim’s privilege was called a qualified privilege, because the material could in some instances be disclosed based on a judge’s discretion.

2. Qualified Privilege for Rape Crisis Counselors - In 1982, Illinois passed its first statute specifically protecting communications between a sexual assault victim and a rape crisis counselor. The original statute, “Confidentiality of Statements Made to Rape Crisis Personnel,” granted only a qualified privilege. Under the statute, someone could request a victim’s rape crisis counseling records by alleging that the records were “necessary to the determination of any issue before the court,” even though the victim had not given consent to release the documents. 735 ILCS 5/8-802.1. Like the privilege under the Mental Health and Developmental Disabilities Confidentiality Act, this privilege was qualified and limited the protection it provided to sexual assault victims. If, after review, a judge found the counseling records relevant to a case, the judge would order that the documents be given to the requesting party.

This qualified privilege did not provide enough protection to sexual assault victims. Defense attorneys routinely would undertake “fishing expeditions” for rape crisis counselor’s records, arguing they had the right to look for any information that might aid their client. Instead, they were really looking for personal information to improperly cast doubt on the character or credibility of the victim. Courts, often favoring a defendant’s rights, would oblige, resulting in the release of personal and sometimes embarrassing information irrelevant to the case, further traumatizing a victim. Many times, the requested information could have been found in medical records or police reports instead of in a therapist’s notes.

Under this qualified privilege, a rape crisis counselor could not promise victims that their counseling records were completely confidential, and the possibility of disclosure had a chilling effect on counseling. Victims were deterred from seeking counseling or freely disclosing information for fear that the information would be released.

3. Absolute Privilege for Rape Crisis Counselors - In 1984, the legislature provided stronger protections for sexual assault victims by amending the “Confidentiality of Statements Made to Rape Crisis Personnel” statute. The statute now established an absolute privilege - in other words the victim is in charge of determining whether her records are released.

II. CONFIDENTIALITY OF STATEMENTS MADE TO RAPE CRISIS PERSONNEL

A. OverviewToday, the “Confidentiality of Statements Made to Rape Crisis Personnel” statute provides significant protection to communications between a victim and a rape crisis worker. 735 ILCS 5/8-802.1. Creating an absolute privilege for rape victims has provided victims with stronger protections and given victims more control over information about their lives. Now, victims can confide in counselors and advocates, knowing that they run little risk of having those communications disclosed publicly unless they consent to such disclosure.

A judge no longer reviews a sexual assault victim’s records to determine their relevance to a case. Instead, when a victim’s records are subpoenaed, she can assert the privilege and refuse to release them to anyone, including the judge. A victim’s records can be disclosed only with her consent. In fact, if a rape crisis counselor discloses confidential communications without a client’s consent, the counselor can be charged with a misdemeanor criminal offense.

And, counselors benefit from these protections as well. In the past, faced with the prospect of being required to divulge private conversations with their clients, counselors sometimes have resorted to keeping two sets of records, or refusing to testify and being held in contempt of court.

In 1988, the Illinois Supreme Court held that the absolute privilege established in the statute, “Confidentiality of Statements Made to Rape Crisis Personnel,” was constitutional.9 In 1993, the legislature amended the statute again to its present form, which broadened the privilege and clarified provisions of the law that deal with consent to disclosure.

B. PurposeThe Illinois legislature recognized the necessity of privacy for rape victims when it described the purpose of the statute:

Par. (a) Purpose. This Section is intended to protect victims of rape from public disclosure of statements they make in confidence to counselors of organizations established to help them. On or after July 1, 1984, “rape” means an act of forced sexual penetration or sexual conduct, as defined in Section 12-12 of the Criminal Code of 1961, as amended. Because of the fear and stigma that often results from those crimes, many victims hesitate to seek help even where it is available at no cost to them. As a result, they not only fail to receive needed medical care and emergency counseling, but may lack the psychological support necessary to report the crime and aid police in preventing future crimes.

C. Confidentiality MandateThis paragraph of the legislation sets forth the absolute nature of the privilege of confidentiality for rape survivors by prohibiting disclosure of protected communications without the victim’s consent. It also explains that protected communications are those between a victim and a rape crisis counselor. Finally, this paragraph states that the victim is the one who decides whether confidential communications with her counselor will be disclosed to anyone.

Par. (d) Confidentiality. Except as provided in this Act, no rape crisis counselor shall disclose any confidential communication or be examined as a witness in any civil or criminal proceeding as to any confidential communication without the written consent of the victim or representative of the victim as provided in subparagraph (e).

D. Definitions1. Rape Crisis CounselorPar. (b)(2) “Rape crisis counselor” means a person who is a psychologist, social worker, employee, or volunteer in any organization or association defined as a rape crisis organization under this Section who has undergone 40 hours of training and is under the control of a direct services supervisor of a rape crisis organization.

The privilege is limited only to the relationship between a “rape crisis counselor” and a person who seeks services as a result of one of the identified sexual assault crimes. Under this law, a “rape crisis counselor” is an employee or volunteer of a rape crisis organization with 40 hours of training who is under control of a supervisor of rape crisis organization. In other words, in addition to counselors, 40-hour trained advocates and educators – paid and volunteer – would be covered by this privilege, in addition to the people who actually counsel a victim.

2. Rape Crisis Organization - To be protected by this privilege, a “rape crisis counselor” must be affiliated with a “rape crisis organization.”

Par. (b)(1) “Rape crisis organization” means any organization or association the major purpose of which is providing information, counseling, and psychological support to victims of any or all of the crimes of aggravated criminal sexual assault, criminal sexual assault, sexual assault relations between siblings, criminal sexual abuse and aggravated criminal sexual abuse.

A rape crisis organization is any organization whose primary purpose is to assist and support victims of sexual assault and sexual abuse. This broad definition can include corporations, collectives and volunteer organizations. Note, however, the “major purpose” must be to provide information, counseling and psychological support. This definition clarifies that the priority in service must be in assisting the victim. Further, a rape crisis center must not take part in activities that conflict with its mission, including participating as an active player in the investigation.

3. Confidential CommunicationPar. (b)(4) “Confidential communication” means any communication between a victim and a rape crisis counselor in the course of providing information, counseling, and advocacy. The term includes all records kept by the counselor or by the organization in the course of providing services to an alleged victim concerning the alleged victim and the services provided.

This provision protects any communication between a victim of sexual assault or sexual abuse and a rape crisis counselor in the course of providing assistance and support to the victim.

Protected communications include “any communication” made by the victim to the rape crisis counselor in connection with a counseling session in a confidential setting. This includes written records kept by the counselor concerning the victim and services she receives. Any notes or documentation made by the counselor regarding this relationship are also protected, including computer-based records and e-mails.

A confidential setting is a situation in which there is an expectation of privacy. Except as provided by the statute, this means that only the victim and the counselor are present during the communication. Exceptions to this requirement are discussed later in this chapter.

4. Victim - The privilege protects any communications a “victim” has with a “rape crisis counselor.”

Par. (b)(3) “Victim” means a person who is the subject of, or who seeks information, counseling, or advocacy services as a result of an aggravated criminal sexual assault, criminal sexual assault, sexual relations within families, criminal sexual abuse, aggravated criminal sexual abuse, sexual exploitation of a child, indecent solicitation of a child, public indecency, exploitation of a child, or an attempt to commit any of these offenses.

The definition of “victim” includes a person who seeks information, counseling or advocacy services as a result of the commission or attempt of one of the above crimes. This definition does not require that the person seeking services be the person against whom the crime was committed. In addition to the identified victim, this definition allows for protection of a parent or significant other who may also request and receive services as a result of a sexual assault. It also includes participants in an education program presented by the rape crisis center.

E. Penalty for Improper Disclosure

Par. (f) Any rape crisis counselor who knowingly discloses any confidential communication in violation of this Act commits a Class C misdemeanor.

Except where otherwise provided by the law, any knowing disclosure by a rape crisis counselor of a “confidential communication” without a properly executed consent is chargeable as a Class C misdemeanor, punishable by a term of imprisonment for more than 30 days, a fine not to exceed $500.00, or both.

F. Exceptions to Absolute Privilege

1. Duty to Warn - If a rape crisis counselor believes that failing to disclose confidential communications will result in serious bodily harm to someone, then the counselor should disclose the communications and will be immune from any liability.Par. (e) A rape crisis counselor may disclose a confidential communication without the consent of the victim if failure to disclose is likely to result in a clear, imminent risk of serious physical injury or death of the victim or another person. Any rape crisis counselor or rape crisis organization participating in good faith in the disclosing of records and communications under this Act shall have immunity from any liability, civil, criminal, or otherwise that might result from the action. In any proceeding, civil or criminal, arising out of a disclosure under this Section, the good faith of any rape crisis counselor or rape crisis organization who disclosed the confidential communication shall be presumed.

This paragraph gives counselors the right to disclose information without the victim’s consent when there is a clear risk of serious bodily harm to the victim or to another person. For example, a counselor might need to warn an appropriate official if a client is suicidal or reports that someone is trying to harm her. A counselor must evaluate each situation individually for risk of harm, including the specificity of the description by the client (e.g. is there a specific plan to inflict harm) and the immediacy of the danger described.

In most circumstances in which a counselor must make a warning, the counselor should notify local law enforcement authorities and the person who is the subject of the threat. The fact that the warning was made should be documented thoroughly in the client’s file.This section of the law also protects a counselor from criminal or civil liability for a “good faith” disclosure. The law presumes that a disclosure is made in good faith. No therapist to date has ever been held liable in Illinois for making a disclosure under duty to warn provisions.

2. Reporting Child Sexual Abuse - When the victim is a minor, child protective statutes override the protection of confidentiality. Rape crisis workers are required to report child abuse and child sexual abuse to the Illinois Department of Child and Family Services under the Abused and Neglected Child Reporting Act (ANCRA). 325 ILCS 5/1 et.seq. For more information on mandated reporting, see Chapter 6 of this manual.

3. Reporting Elder Abuse - Rape crisis center employees and volunteers also are required to report elder abuse under the Elder Abuse and Neglect Act. 320 ILCS 20/1 et.seq. Although centers may not serve a large number of elderly clients, intervention in an instance of elder abuse can provide seniors with critical assistance in escaping an abusive situation. To report elder abuse, a rape crisis worker should call the Illinois Department on Aging, Elder Abuse and Neglect Program, Senior Helpline at 1-800-252-8966. On evenings and weekends, crisis workers should call 1-800-279-0400.

G. Waiver of Privilege – Statutory Provisions

1. Introduction - The “Confidentiality of Statements Made to Rape Crisis Personnel” statute was amended in 1993 to add the “waiver of privilege” paragraphs. Waiver means that the victim gives up or relinquishes her privilege to keep information confidential. The law clarifies when a privilege is waived, who has the power to waive the privilege and under what circumstances the privilege of confidentiality can be waived. When a victim no longer wants the rape crisis privilege to protect her relationship with her counselor, or the counselor or client acts in a manner that negates that privilege as discussed below, the victim has waived her privilege. In doing so, she will release the contents of her confidential communications with her counselor.

Despite having an absolute privilege to keep information confidential, occasionally a victim will choose to release her records or ask her counselor to testify at a hearing or trial. Ultimately, the victim makes the decision whether to waive this privilege. But counselors (and advocates, educators and, sometimes, center directors) play an important role in ensuring the victim is fully informed and understands the consequences involved in waiving her privilege to confidentiality.

2. Circumstances in Which a Victim Might Waive Her Privilege - A victim may choose to waive her privilege in any kind of legal case -- a criminal case, a civil case against her perpetrator, or a civil matter such as a divorce or a custody lawsuit. But once she waives this privilege, she has waived it forever. A victim generally considers waiving confidentiality in a legal case when she, in conjunction with a lawyer, believes that the testimony of the rape crisis counselor (either verbal or through records) will reinforce the victim’s position in the case.

A victim also may consider waiving her privilege to allow a rape crisis counselor or advocate to talk to another professional with whom the victim is working, such as a medical doctor. In this situation, a victim usually considers waiving confidentiality to allow her service providers to communicate with each other to coordinate services. Advocates should stress to a victim that, once a victim chooses to waive her privilege of confidentiality, she loses it forever.

3 Waiver of Privilege by a Person 12 Years Old or OlderPar. (c)(4) A minor victim 12 years of age or older may knowingly waive the privilege established in this Section. When a minor is, in the opinion of the Court, incapable of knowingly waiving the privilege, the parent or guardian of the minor may waive the privilege on behalf of the minor, unless the parent or guardian has been charged with a violent crime against the victim or otherwise has any interest adverse to that of the minor with respect to the waiver of the privilege.

This section gives 12-year-olds and teenagers the right to decide whether their confidential communications with a rape crisis counselor will be disclosed.

4. Inspection of Records and ‘Waiver of Privilege’ For Victims Under 12 Years Old - The rape crisis privilege identifies who may review a victim's rape crisis counseling records and who can waive the privilege for minor victims under 12 years old.Par. (c)(2) The confidential nature of counseling records is not waived when: the victim inspects the records; or in the case of a minor child less than 12 years of age, a parent or guardian whose interests are not adverse to the minor inspects the records; or in the case of a minor victim 12 years or older, a parent or guardian whose interests are not adverse to the minor inspects the records with the victim’s consent.

If a victim is under 12-years-old, the victim or non-offending parent or guardian can examine rape crisis records without jeopardizing the victim’s privilege to keep the information confidential. The privilege is also preserved when a victim who is a minor at least 12-years-old or older consents to allow a non-offending parent to review the records.For a victim under 12, a parent or guardian whose interests are not adverse to the victim can waive confidentiality.

5. Deceased or Incompetent Victims - The law also identifies who can waive the privilege in cases where the victim is deceased or incompetent.

Par. (c)(3) When a victim is deceased or has been adjudged incompetent by a court of competent jurisdiction, the victim’s guardian or the executor or administrator of the victim’s estate may waive the privilege established by this Section, unless the guardian, executor, or administrator has an interest adverse to the victim.

6. O.K. Third Parties Do Not Constitute Waiver - Ordinarily, communications between a victim and a rape crisis counselor are confidential only if no one else is present. The statute defines three exceptions when a third person (referred to as an O.K. Third Party) may be involved in the communication between the victim and the counselor without jeopardizing the victim’s privilege.

Par. (c)(1) Waiver of privilege. The confidential nature of the communication is not waived by: the presence of a third person who further expresses the interests of the victim at the time of the communication; group counseling; or disclosure to a third person with the consent of the victim when reasonably necessary to accomplish the purpose for which the counselor is consulted.

First, “the presence of a third person who further expresses the interests of the victim at the time of the communication” does not waive the victim’s privilege. For example, this provision allows rape crisis counselors to communicate through a translator, interpreter or with the parent or guardian of a child.10

Second, the statute protects communications during group counseling, despite the presence of other group members.

Third, a rape crisis counselor may speak with an outside party to provide necessary rape crisis services if the victim consents. This allows a counselor to assist the victim in filing crime victim compensation forms, or in correcting a hospital billing error without the risk of violating the victim’s confidentiality rights.

Under separate provisions in the Mental Health and Developmental Disabilities Confidentiality Act, a counselor also may disclose information concerning the victim to other counselors, colleagues and supervisors for the purpose of consultation without violating confidentiality.11

The permission to allow a third party to be present during confidential communications between a victim and a rape crisis counselor does not include criminal justice personnel because they are not persons focused solely on the best interests of the victim. Law enforcement officers and prosecutors can be important allies to a victim and to rape crisis centers but their primary goal is apprehension of the criminal, rather than victim support.The advocate’s presence during the police/prosecutor interviews constitutes a waiver of the privilege. In contacts with police or State’s Attorneys, the counselor/advocate cannot refer to her communications with the victim.

H. Waiver of Privilege – MethodsWhile the vast majority of sexual assault victims desire to keep their contacts with a rape crisis center confidential, there will be occasions when the victim may choose to consent to release of information. The rape crisis privilege can be waived in two ways.

1. Written Consent to Disclose - Under the privilege statute, if a victim consents to waive the privilege, it must be an informed consent done in writing; a victim cannot consent to waive the privilege verbally. Therefore, the victim who chooses to disclose her confidential communications must sign a form, discussed below, regarding consent to release the information. Informed consent means that the victim knows completely the consequences of her decision to waive the privilege, including which information will be released and to whom it will be released.

Before authorizing consent, a victim has the right to – and should – review all records pertaining to her case. The rape crisis counselor should discuss with the victim the advantages and disadvantages of disclosure of records, noting any specific documented communications and stating the potential consequences of disclosure. In some cases, it may be to the victim’s benefit to disclose the information. In all cases, the scope and ramifications of disclosure should be made clear to the best of the advocate’s knowledge.

2. Consent to Release Forms - In 1975, the American Psychiatric Association made these recommendations regarding consent to release forms.

The authorization should:

be written;

signed and dated;

state that the provider is authorized to disclose information;

state specifically what information will be disclosed;

state specifically who will receive the information;

state specifically the purpose for which information

is disclosed; and state specifically the expiration date of the consent, which should not exceed one year.

The counselor also should indicate in writing that the victim was informed of her rights under the confidentiality statute and that she chose to waive her privilege and have the information disclosed. Illinois substantially has adopted these recommendations into the Mental Health and Developmental Disabilities Confidentiality Act. For a comprehensive explanation of written waivers, refer to ICASA’s Handbook of Policies and Procedures: Safeguarding Confidentiality in Rape Crisis Services.

3. When Victim or Counselor Conduct Operates to Waive the Privilege of Confidentiality - A victim’s conduct, or the conduct of a rape crisis employee or volunteer, also can operate to waive the victim’s rights of confidentiality. Waiver by conduct can occur in three ways:

(1) when the victim talks with the counselor in the presence of a bystander who is not protected by the privilege;

(2) when the counselor repeats confidential communications that she had with the victim to a person not protected by the privilege; or

(3) when the victim discloses the confidential communications of her discussions with a rape crisis counselor to a third party (for example, if the victim tells the police officer, “I told my counselor I couldn’t get a good look at his face.”).

Although the statute does permit a counselor to communicate in the presence of a third person who is there to assist the victim, a counselor should not discuss the case with a third party unless it is necessary to further the victim’s interest and only when the victim specifically consents in writing prior to any disclosure.

III. ASSERTING THE VICTIM’S RIGHT TO CONFIDENTIALITY

A. OverviewIllinois law provides that a sexual assault victim has control of the privilege that protects her confidentiality at the rape crisis center, but the rape crisis counselor is responsible for asserting the sexual assault survivor’s rights. Under the law, unless an exception applies, only the victim or her designee can consent to waive her right to confidentiality. Thus, in most cases the center will respond to a request for information by asserting the victim’s right to confidentiality.

B. Responding to a Request For Information

1. Subpoena - Usually a request for information about a victim will come in the form of a subpoena from an attorney. There are two kinds of subpoenas in Illinois: a subpoena ad testicandum requires the counselor or advocate to testify in person and a subpoena duces tecum requires that records be produced for examination. A single subpoena may include both a request for records and testimony of the counselor.A subpoena may request that all records for a particular client be delivered to a specific address or that the counselor or advocate arrive at court with the records on a specific date. “All records” refers to everything that has been documented at the rape crisis center regarding services provided to that victim.

2. Being Served – Procedures - A subpoena may be served by mail or in person. Once the center receives a subpoena, staff should check to see whether any release has already been signed with regard to the information requested in the subpoenas. If a release exists, the center should respond to the subpoena accordingly. If no release exists, staff from the center should contact the victim to determine whether the victim wants to release the confidential information demanded in the subpoena.

3. Responding to a Subpoena

a. Consent to DiscloseIf the victim consents to disclosure of records or to testimony by a rape crisis counselor or advocate, the consent must be in writing. When responding to a subpoena for testimony, the counselor or advocate must appear to answer questions at the time and place designated on the subpoena. When responding to a subpoena duces tecum, the counselor should make a copy of the victim’s records and deliver them at the place and time designated. Illinois does not require the submission of original records; copies are permissible. Advocates should retain a copy of all materials turned over to law enforcement officials. After a client signs a consent to release information, confidentiality has been waived for all information a rape crisis center has about a client, even if only a portion of a client’s records are released or a counselor testifies to only limited information about the client.

b. Refusal to DiscloseUsually, the victim does not wish to give up her confidentiality. In these cases, the rape crisis center will invoke the privilege not to disclose the confidential communications.

A representative of the rape crisis center can contact the party requesting the records/testimony stating that the requested information is protected by the confidentiality statute. Some attorneys are not aware of the statute and, when informed, may withdraw their request for records and/or testimony. In the conversation with the State’s Attorney, the advocate should cite the statute, Confidentiality of Statements Made to Rape Crisis Personnel, 735 ILCS 5/8-802.1. All rape crisis centers should develop a relationship with a local attorney who can represent the center in responding to subpoenas, either for no charge (pro bono) or for a very low fee. This attorney can contact the attorney who is requesting protected documents to request that s/he withdraw the subpoena. One advantage of an attorney making this call is that s/he may have a professional rapport with the attorney who served the subpoena. This can make the discussion regarding the subpoena easier. For additional information on responding to a request for client conformation, see ICASA’s Pro Bono Attorney Referral Packet.

c. Motion to QuashIf the attorney who requested information refuses to withdraw the subpoena, the center’s attorney or the victim’s attorney (if she has one) must file a Motion to Quash the Subpoena. After the Motion to Quash is filed, a hearing is set. The person who wishes to establish the confidentiality of records and/or testimony must prove in court that the relationship is privileged, and therefore all communications between the people identified are privileged. The hearing will establish that:

the counselor is a rape crisis counselor as defined under the law; the organization is one that constitutes a rape crisis center as defined under the law;

the communications were made in confidence with the expectation of privacy;

and no consent to release the confidential communications has been given by the victim.

If these facts are established, the judge should prohibit disclosure as required under the confidentiality statute. However, note that the judge may not do this.

d. Failure to Respond Or ComplyIf the judge orders a release of information over the victim’s objection, the order is nonetheless effective unless the judge agrees to “stay” the order pending an appeal to the appellate court. If the judge does not grant a “stay,” and the center refuses to comply, the counselor can be held in contempt of court, which may result in the counselor being fined or jailed or both. Once a contempt sentence is entered, the conviction becomes appealable and can be examined by an appellate court.

e. Motion for a Protective OrderIf the court determines that the records are not protected by the statute, the court may nonetheless enter a protective order on motion of any party or witness limiting disclosure of the records or limiting the testimony. The court may even provide limits on further disclosure of materials contained in the records by any party.12

IV. CONFIDENTIALITY AND CHILD VICTIMSA. Historical View

Historically, minors have been subject to the authority and control of their parents or guardians. In 1899, the first juvenile court in the nation was created in Chicago and officials began to view children as more than the “property” of their parents. In the early 1900’s, the mental health field began to examine the issue of child abuse. Sexual abuse of children was documented as early as the 6th century B.C., but has been the subject of much research only in the last two decades.

Until the 1960’s, minors’ legal rights generally were not recognized, based on the theory that children were incapable of making informed decisions.13 Especially in the case of adolescents, many of whom might qualify as mature minors, this assumption is invalid. Children must be protected from sexual abuse or exploitation. They also can and should be able to make decisions that help them recover from sexual abuse.

B. Preserving Confidentiality With MinorsSexual assault centers provide services to victims who are minors. Rape crisis counselors provide guidance and support to alleviate the feelings of shame, humiliation and embarrassment often triggered by a sexual assault. Confidentiality is central to this relationship between counselors and victims who are minors. However, in the case of a minor, overlapping legal rules complicate the ability of the rape crisis counselor to provide confidential services. Depending on the age of the child, parents may be called upon to consent to services for the child and/or to decide whether information should be released.When both parents have custody, each parent has a duty and a right to control the care and custody of the child.14 If a parent has filed for divorce, a court may have granted legal custody to one parent. In such a case, that parent has the right to consent to the care and treatment of the minor child. When parents are in the process of divorce, it is especially important to ascertain whether one or both parents have the right to consent to services for the child.15 It is appropriate for the parent to affirm in writing that s/he has legal authority to consent to counseling on behalf of the child.

In Illinois, a victim of sexual abuse over the age of 12 has the right to consent to a limited amount of counseling.16 Further, some adolescents may be considered “mature,”17 and an “emancipated” minor can consent on an equal basis as an adult.18 For contacts and services beyond those granted to the minor, the rape crisis counselor must obtain consent of a parent or legal guardian.

Even when a parent consents to counseling on behalf of a minor, the child client will have an expectation of privacy and may resist any disclosure of information to a parent. Adolescents, especially, have privacy concerns that may legitimately lead to less disclosure of information to parents. For minor clients under the age of 12, a parent can access the child’s records and talk to the child’s counselor – with or without the child’s consent.19 A minor aged 12 or older has the power to determine who accesses her records. In short, a child 12-years-old or older can deny her parents access to her records.20

Sexual assault advocates and counselors should explain the issue of client confidentiality to a minor client and her parent or guardian. Both the minor and the parent should be clearly informed about disclosure that will occur with parents. For example, both the parent and child should be told at the initial session that a rape crisis counselor who is a mandated reporter will make a child sexual abuse report to DCFS to protect the minor from further risk of harm. Once they understand the need to maintain confidentiality for the child, parents often consent to services for the minor. Generally, a rape crisis counselor and an adolescent client will develop a rapport that can lead to the minor sharing appropriate disclosures with the parent at an appropriate time.

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Survivors ARE Heroes!

The Awareness Center believes ALL survivors of sex crimes should be given yellow ribbons to wear proudly.

Survivors of sexual violence (as adults and/or as a child) are just as deserving of a yellow ribbon as the men and women of our armed forces, who have been held captive as hostages or prisoners of war.

Survivors of sexual violence have been forced to learn how to survive, being held captive not by foreigners, but mostly by their own family members, teachers, camp counselors, coaches babysitters, rabbis, cantors or other trusted authority figures.

For these reasons ALL survivors of sexual violence should be seen as heroes!